Equityholder Indemnification. Subject to the limitations set forth in Section 10.03, the Equityholders, severally and not jointly, in accordance with their Pro Rata Portion, hereby indemnify Parent, its Affiliates (including, after the Effective Time, the Surviving Corporation and its Subsidiaries) and their respective officers, directors, employees, agents, successors and assignees (collectively, the “Parent Indemnified Parties”) against and hold each of the Parent Indemnified Parties harmless from any and all claims, damages (including, solely with respect to Third Party Claims and not with respect to any other claims, punitive, special, exemplary or similar damages awarded to such Third Party), losses, liabilities, fines, penalties and expense (including reasonable expenses of investigation and reasonable attorneys’ and consultants’ fees and expenses in connection with any action, suit or proceeding whether involving a Third Party claim or a claim solely between the parties hereto to enforce the provisions hereof) (collectively, “Losses”), incurred or suffered by any Parent Indemnified Party, in each case, regardless of whether such Losses arise as a result of the negligence, strict liability or any other liability under any theory of law or equity of, or violation of any law by, the Parent Indemnified Parties, directly or indirectly, as a result of, with respect to or in connection with: (i) any misrepresentation or breach of warranty (without giving effect to any qualification or exception relating to materiality or Material Adverse Effect or similar qualification or standard including specified dollar thresholds contained therein or with respect thereto both for purposes of determining whether a representation or warranty is true and correct and for purposes of determining the amount of any Losses) made by the Company pursuant to this Agreement or in any certificate or other writing delivered pursuant hereto or thereto; (ii) any breach of covenant or agreement to be performed by the Company pursuant to this Agreement or in any certificate or other writing delivered pursuant hereto or thereto; (iii) the amount of any Dissenting Share Payments; (iv) any claims by any current or former holder of Company Stock or any alleged current or former holder of any equity interest or equity security of the Company or any of its Subsidiaries for breach of fiduciary duty relating to the transactions contemplated by this Agreement; (v) the failure of any item set forth in the Allocation Certificate to be accurate, true and correct in all respects as of immediately prior to the Effective Time, including the amount (to the extent not otherwise adjusted for pursuant to Section 2.10(a)) of any items not taken into account in the calculation of the Closing Adjustment; or (vi) notwithstanding any disclosure on the Company Disclosure Schedule, any “excess parachute payment” (within the meaning of Section 280G(b) of the Code) made by the Company on or prior to the Closing Date or otherwise required to be paid by the Company or the Surviving Corporation pursuant to agreements or employee plans entered into or adopted on or prior to the Closing Date. The Parent Indemnified Parties shall use commercially reasonable efforts to mitigate any Losses if, in the good faith judgment of Parent, such mitigation efforts would not subject any Parent Indemnified Party to any unreimbursed cost or expense and would not otherwise be disadvantageous to any Parent Indemnified Party, and provided that any costs associated with such efforts shall constitute Losses.
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Sources: Merger Agreement (Formfactor Inc), Merger Agreement (Formfactor Inc)
Equityholder Indemnification. Subject to the limitations set forth in Section 10.03, the Equityholders, severally and not jointly, in accordance with their Pro Rata Portion, hereby indemnify Parent, its Affiliates (including, after the Effective Time, the Surviving Corporation and its Subsidiaries) and their respective officers, directors, employees, agents, successors and assignees (collectively, the “Parent Indemnified Parties”) against and hold each of the Parent Indemnified Parties harmless from any and all claims, damages (including, solely with respect to Third Party Claims and not with respect to any other claims, punitive, special, exemplary or similar damages awarded to such Third Party), losses, liabilities, fines, penalties and expense (including reasonable expenses of investigation and reasonable attorneys’ and consultants’ fees and expenses in connection with any action, suit or proceeding whether involving a Third Party claim or a claim solely between the parties hereto to enforce the provisions hereof) (collectively, “Losses”), incurred or suffered by any Parent Indemnified Party, in each case, regardless of whether such Losses arise as a result of the negligence, strict liability or any other liability under any theory of law or equity of, or violation of any law by, the Parent Indemnified Parties, directly or indirectly, as a result of, with respect to or in connection with:
(i) any misrepresentation or breach of warranty (without giving effect to any qualification or exception relating to materiality or Material Adverse Effect or similar qualification or standard including specified dollar thresholds contained therein or with respect thereto both for purposes of determining whether a representation or warranty is true and correct and for purposes of determining the amount of any Losses) made by the Company pursuant to this Agreement or in any certificate or other writing delivered pursuant hereto or thereto;
(ii) any breach of covenant or agreement to be performed by the Company pursuant to this Agreement or in any certificate or other writing delivered pursuant hereto or thereto;
(iii) the amount of any Dissenting Share Payments;
(iv) any claims by any current or former holder of Company Stock or any alleged current or former holder of any equity interest or equity security of the Company or any of its Subsidiaries for breach of fiduciary duty relating to the transactions contemplated by this Agreement;
(v) the failure of any item set forth in the Allocation Certificate to be accurate, true and correct in all respects as of immediately prior to the Effective Time, including the amount (to the extent not otherwise adjusted for pursuant to Section 2.10(a)) of any items not taken into account in the calculation of the Closing Adjustment; or
(vi) notwithstanding any disclosure on the Company Disclosure Schedule, any “excess parachute payment” (within the meaning of Section 280G(b) of the Code) made by the Company on or prior to the Closing Date or otherwise required to be paid by the Company or the Surviving Corporation pursuant to agreements or employee plans entered into or adopted on or prior to the Closing Date. The Parent Indemnified Parties shall use commercially reasonable efforts to mitigate any Losses if, in the good faith judgment of Parent, such mitigation efforts would not subject any Parent Indemnified Party to any unreimbursed cost or expense and would not otherwise be disadvantageous to any Parent Indemnified Party, and provided that any costs associated with such efforts shall constitute Losses.
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